( 470 )
Renton C.J.
“‘ v.
concluded that the judgment-debtor, by whom actually payment hadbeen made, arrived with the Fiscal's letter authorizing a stay of thesale. Even if we assume that the appellant did hear the statementof the judgment-debtors to the Fiscal’s Arachchi prior to the sale,it does not, in my opinion, necessarily result from that fact that hewas aware that payment had been made. I do not think that theevidence, which I have just' summarized, is sufficient to bring homefraud to the appellant within the meaning of the cases abovementioned.
/ ^The question then arises whether, in' the absence of fraud, the
sale can be set aside. To that question the answer, must, in my
opinion, be in the negative. The trend of judicial decisions in thiB
Colony distinctly establishes the proposition' which is supported
by the language of section^ 342 and 343 'of the Civil Procedure Code,
that a Fiscal- has no legal power to stay a sale otherwise than upon
an order of Court. He may adjourn the sale. It is no doubt
customary (see Saparamadu Appuhamy v. Appuhamy1) for Fiscals
or their officers to stay sales upon the application of parties to the
proceedings, but they do so at their own risk. The safe course
for a Fiscal to whom any such application is made is to adjourn the
sale and report the matter to the Court itself. The case of Silva v.
Rawter,2 although it turned directly on the claim sections in the
Civil Procedure Code, is, I think, an authority for the proposition
that the Fiscal has no power to stay execution without an order of
the Court, and it has been subsequently interpreted in that 6ense.
See 436 C. R. Negombo, 19,074," and 321 C. R. Matara, 7,886> It
appears to me that this is a reasonable construction of the law. It
would be highly inconvenient if the right of Fiscals or their officers
to stay a sale of their own authority were recognized. Section 226
of the Civil Procedure Code shows that, if payment is not made to
the Fiscal or his officer by the judgment-debtor on the original
demand before execution of the writ is proceeded with, the seizure
and sale must follow so far as the .Fiscal or his officer is concerned.
The expression “ by seizure, and, if necessary, by sale ’/ in Form
No. 43 in the schedule to the Civil Procedure Code cannot be taken
as modifying the clear language of section 226. The direction in
that section that the Fiscal shall “ forthwith proceed to seize and
sell ’ ’ is peremptory, subject to the power of adjournment conferred
by section 342.
On these grounds I would set aside the order under appeal,and direct judgment to be entered up confirming the sale. Theappellant is entitled to his costs in the District Court and alsoof this appeal.
Shaw J.—I agree.
Set aside.
» (1909) 2 S. C. D. 76.
* (1906) 10 N. L. R. 66.
-* S. C. Min. Jan. 21, 1918,* S. C. Min. Nov. 8, 1914.